A Colonial-Era Law That Outlawed Same-Sex Relations Is Defeated

If a democratic society is characterized by “tolerance, diversity and open-mindedness,” three countries in Africa have now reached that pinnacle.

This month, Botswana joined Angola and Mozambique in decriminalizing same-sex relations. High Court Justice Michael Lebruru, in his defining decision, added: “human dignity is harmed when minority groups are marginalized.”

The ruling decided a case brought by Letsweletse Motshidiemang, 24, a student at the University of Botswana. Society has changed, he argued, and Botswana’s colonial-era prohibition on gay sex also needed to change.

Mr. Motshidiemang was emotional at the news of his victory. “Of course I wanted to win, but I didn’t expect it,” he said through tears on the phone. “I did it just because I felt it was something I had to do for my community.”

While Botswana’s courts were enforcing the archaic law which brought a prison term of up to 7 years, England and Wales had already lifted these punishments.

“We’ve been stuck with these provisions when [the British] have long discarded them,” said Tshiamo Rantao, the lawyer for the Lesbians, Gays & Bisexuals of Botswana (LEGABIBO), an advocacy group that joined the case as a friend of the court.

Sadly, a similar case in Kenya took a different route. The High Court there upheld that country’s ban on gay sex, finding that “the time has not yet arrived to decriminalize homosexual practices.”

“Gay men and women do not represent a group or class which at this stage has been shown to require protection under the Constitution,” the Kenyan judges agreed.

The judges in Botswana firmly disagreed. “As society changes, the law must evolve,” explained Judge Leburu. The law in Botswana, he said, was a “British import” and had been developed “without consultation of local peoples.”

Tshepo Ricki Kgositau, a transgender woman who in 2017 successfully challenged this same court to have the gender marker on her driver’s license changed from male to female, applauded the court’s ruling. “It’s about time Botswana sheds this colonial legacy and interprets its own humanity,” she declared.